Kronen v Commercial Motor Industries Pty Ltd

Federal Court of Australia (Full Court)|2021-03-24|Before: O'Callaghan JJ

The application to the IRCSA in 2013 for reopening 29 The appellant then commenced on a new course. On 9 September 2013, he filed an application for directions in the IRCSA in his 2005 action seeking the re-opening and reconsideration of various questions relating to that part of the original application that embodied the "superannuation claim". The accompanying particulars indicated that the questions which the appellant sought to have reopened for reconsideration included: (a) the question of jurisdiction - does the Court have the capacity to entertain my claim subject to section 177A and 178 of [the WR Act]; (b) the question of the quantum of any entitlement subject to subsection 178(6A), 178(6B) and 178(7), including the question of the obligation of an employer bound by [the Award] to make superannuation contributions on commission payments; (c) the question of the respondent's (and its Agent's) conduct in this matter, including the question of attempting to evade compliance with the terms of the Award and/or attempting to defraud employees on their lawful superannuation entitlements. (Emphasis added) 30 In that application, the appellant did not seek leave to amend his 2005 proceedings so as to seek the imposition of a penalty on CMI pursuant to s 178 of the WR Act. 31 Although the appellant's application for directions was accepted for filing by the IRCSA, it was subsequently (on 12 September 2013) "struck from the file" by the Registrar. The Registrar did so in accordance with a direction from an Industrial Magistrate made, it seems, on the basis that the application constituted an abuse of the IRCSA's process. The appellant then pursued, unsuccessfully, appeals to a single judge and to the Full Bench of IRCSA. On a further appeal to the Supreme Court of South Australia, the Full Court held that the direction of the Industrial Magistrate was a judgment which could be the subject of appeal but confirmed that the appellant's right of appeal lay to this Court: Kronen v Commercial Motor Industries Pty Ltd [2016] SASCFC 8; (2016) 124 SASR 427. 32 The appellant then filed (on 29 February 2016) a fresh application for directions seeking the reopening of the 2005 proceedings (in the same terms as his 2013 application). In the course of the hearing of that application on 29 April 2016, the appellant made an oral application, for the first time, for leave to amend the 2005 proceedings so as to seek the imposition of a penalty on CMI under s 178 of the WR Act. The application to reopen was refused by an Industrial Magistrate in the IRCSA: Kronen v Commercial Motor Industries Pty Ltd [2016] SAIRC 23.

The 2017 appeal to this Court 33 The appellant's appeal to this Court against that decision succeeded (Kronen v Commercial Motor Industries Pty Ltd (t/as CMI Toyota) [2017] FCA 33; (2017) 251 FCR 282 (Kronen 2017)) and the matter was remitted to the IRCSA for further consideration.

The dissolution of the IRCSA in 2017 34 Before the IRCSA could complete its reconsideration of the application to reopen, it was dissolved with effect from 1 July 2017 (Statutes Amendment (South Australia Employment Tribunal) Act 2016 (SA) s 69(2)) and, in general, the jurisdiction of the kind it had formerly exercised was vested in the South Australian Employment Tribunal in Court Session, known as the South Australian Employment Court (SAEC). The appellant's application was then referred to the SAEC. However, a judge of the SAEC found that it did not have jurisdiction to hear and determine the appellant's application to reopen (Kronen v Commercial Motor Industries Pty Ltd [2017] SAET 156). 35 That decision was upheld on appeal to this Court (Kronen v Commercial Motor Industries Pty Ltd [2018] FCAFC 136; (2018) 264 FCR 408 (Kronen Full Court 2018). However, the Full Court considered that the effect of s 16 of the Acts Interpretation Act 1915 (SA) (the AI Act (SA)) was that the IRCSA continued to exist for the purposes of the determination of the appellant's application for directions. The decision of the Senior Judge of the IRCSA which is the subject of the present appeal is the decision of the IRCSA on the application to reopen.

The reasons of the Senior Judge 36 The Senior Judge accepted that s 174 of the FW Act (SA) vested the IRCSA with a discretionary power to reopen the appellant's 2005 application, at [76]. His Honour gave extensive reasons for refusing to exercise that power in the appellant's favour. Those reasons may be summarised as follows: (a) the power to reopen had to be exercised within well-established principles concerning the desirability of finality in litigation, Anshun estoppels, and the public interest in courts not hearing and determining claims which are stale. This meant that the appellant had to establish that there was "good reason" to reopen the 2005 application, at [76]. His Honour noted that the cases in which reopening is permitted tend to be exceptional and rare, at [83], and that, ordinarily, litigants are bound by the cases on which they proceed, at [77]; (b) even though the IRCSA is governed in the exercise of its jurisdiction by equity, good conscience and the substantial merits of the case (s 154 of the FW Act (SA)), the Court was required to exercise the discretionary power in s 174 by weighing all of the competing considerations in the circumstances of the case as a whole, at [85]; (c) as reopening of itself would be futile, the relevant question was whether the appellant should be permitted to reopen the 2005 application and then amend it with retrospective effect, so as to raise a cause of action relying on s 178 of the WR Act, at [85]; (d) the power of the IRCSA to permit amendment is also discretionary and requires all relevant considerations to be "balanced", at [91]; (e) the "correct forum" in which the appellant's contentions concerning the errors he attributed to the Industrial Magistrate in the 2006 decision had been in this Court on the appeal culminating in the judgment in Kronen Full Court 2018, at [88]. The IRCSA did not have jurisdiction to review Kronen Full Court 2008, at [94]; (f) this was not a case in which s 166(1)(b) of the FW Act (SA) could be invoked as there was no suggestion, let alone evidence, that there had been a mistake of the slip rule kind, at [89]-[90]; (g) the most persuasive argument in the appellant's favour was that the merits of his superannuation claim had never been finally determined, at [92]; (h) the appellant was responsible for not having sought the imposition of a civil penalty in the 2005 application so as to enliven the jurisdiction of the IRCSA to make an order with respect to his superannuation claim. His forensic decision not to pursue such a claim at that time made the principles concerning Anshun estoppel relevant, at [93]; (i) further still, this Court in Kronen Full Court 2008 had identified for the appellant the deficiencies in his case, with the consequence that, at least by 8 October 2008, he had been on notice that, in order to pursue a superannuation claim, he would need to raise the cause of action under s 178 by seeking the imposition of a penalty on CMI, at [93]; (j) after 8 October 2008, the appellant had delayed almost five years before lodging his application to reopen the 2005 application. Even then, he had not made his oral application to amend the 2005 application until 29 April 2016, that is, some 7½ years after the judgment in Kronen Full Court 2008, at [95]. The Senior Judge characterised this delay as "excessive", at [96], [98]; (k) CMI would be prejudiced by a reopening and amendment with retrospective effect. The prejudice would arise by reason that it would have to prepare for and participate in a further hearing with the prospect of there being yet further appeals and by reason that it would be seeking to defend breaches alleged to have occurred approximately 20 years earlier. This was especially so given the appellant's allegation that CMI had engaged intentionally, and in concert with other employers, in systemic underpayment of its employees, [97]-[100]. 37 The Senior Judge concluded by saying: [101] When considering the totality of the circumstances of Mr Kronen's 2016 application to reopen and amend the 2005 application with retrospective effect, I consider that the public interest in the finality of litigation tells heavily towards the application being refused. It will only be the exceptional and rare case where such an application should be granted. Mr Kronen has not established a good reason why he did not raise a s 178 cause of action for the imposition of a penalty against CMI Toyota, within the 2005 application. He has also not established a good reason why that initial application should be reopened and amended with retrospective effect. I take on board that the application(s) were made well after the initial hearing and judgment and after a series of appeals had been finalised. Also, in that regard, that the public interest in not allowing stale matters to be pursued is enlivened by the excessive and prejudicial delay caused by Mr Kronen bringing his application when, and in the way that he did. The fact that if there were to be a future hearing on breaches of the Award and the resultant penalty issues, that such a hearing would inquire into evidence over 20 years old is a strong indicator of how stale this series of litigation has become. [102] If follows that after balancing all of the relevant principles and factors and after considering the flexibility of the IRCSA, and the s 154 issues, that Mr Kronen has not discharged the heavy burden cast upon him to show that his 2005 application should be reopened and amended with retrospective effect to raise the cause of action for the imposition of a penalty against CMI Toyota, pursuant to s 178 of the WR Act. Accordingly, the interests of justice require that his application to do so should be dismissed. I would so order.

The grounds of appeal 38 The appellant's Notice of Appeal contains 14 grounds. All proceed on the premise that the IRCSA did have power to permit the reopening and the amendment of the 2005 proceedings with retrospective effect and concerned the Senior Judge's refusal to do so. 39 The appellant did not, in either his written outline of submissions or in his oral submissions, address each ground separately. Instead he advanced two principal submissions which he characterised as "the Primary Argument" and "the Secondary Argument", describing the latter as a "stand alone argument". It is convenient to address the issues raised on the appeal by reference to those two arguments. As the appellant made his submissions with respect to the Secondary Argument first, we will, after referring to some relevant principles, do likewise.

Principles bearing on the power to reopen 40 In Kronen 2017, White J discussed the power of the IRCSA to reopen a proceeding and the principles on which it acts. It is convenient to repeat verbatim what was said then: 41 The power of the IRCSA to reopen a question which the appellant was seeking to have exercised in his favour is that conferred by s 174 of the FW Act (SA): The Court or the Commission may re-open a question previously decided and amend or quash an earlier determination. 42 Section 174 vests a discretionary power in the IRCSA which is not subject to any statutory conditions. The power is to be exercised to serve the interests of justice and, accordingly, should not be construed narrowly. That is especially so given that s 174 relates to proceedings in both the IRCSA and in the Industrial Relations Commission of South Australia. 43 Nevertheless, s 174 should be understood, at least in relation to the IRCSA, as intended to operate in the context of some broader well established principles. First, there is the public interest, and the interests of the parties to particular litigation, in the finality of litigation. Secondly, there is the principle which underpins the Anshun estoppel (Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589) which operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of an earlier proceeding as to have made it unreasonable for the proposed new claim not to have been made or the issue not to have been raised in that proceeding. Thirdly, there is the public interest in courts not hearing and determining claims which are stale, reflected in limitation of actions legislation. 44 When s 174 is understood as operating in the context of these principles, it is to be expected that a party seeking to reopen a question previously determined in proceedings in the IRCSA will have to establish good reason for that course to be allowed. That is consistent with the approach taken by courts more generally in relation to the reopening of judgments or orders. In De L v Director-General, New South Wales Department of Community Services (No 2) (1997) 190 CLR 207 (De L v Director-General), the plurality (Toohey, Gaudron, McHugh, Gummow and Kirby JJ) said at 215: The Court may [reopen its judgments or orders] if it is convinced that, in its earlier consideration of the point, it has proceeded "on a misapprehension as to the facts or the law", where "there is some matter calling for review" or where "the interests of justice so require". It has been said repeatedly that a heavy burden is cast upon the applicant for reopening to show that such an exceptional course is required "without fault on his part", ie without the attribution of neglect or default to the party seeking reopening. By such expressions of the power to reopen final orders, courts seek to recognise competing objectives of the law. On the one hand, there is the principle of finality of litigation which reinforces the respect that should be shown to orders, final on their face, addressed to the world at large and upon which conduct may be ordered reliant upon their binding authority. On the other hand, courts recognise that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice. (Citations omitted) 45 In Ashby v Slipper (No 2) [2014] FCAFC 67; (2014) 314 ALR 84, the Full Court of this Court said, at [13]-[15]: [13] The exercise of the discretion to vary or set aside orders … is a power to be used only sparingly, with great caution and rarely, having regard to the public interest in the finality of litigation … . [14] The discretion is exercised to cure injustice, particularly where it would otherwise be irremediable … . [15] As Kenny J stated in Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24]: "[i]n every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open" … . (Citations omitted) 46 Two factors may suggest that these principles should not be applied with the same rigor in the context of s 174 of the FW Act (SA). The first is that s 174 applies to proceedings in the Industrial Commission as well as to proceedings in the IRCSA. That may be an indication that the power to reopen may be exercised more flexibly than is the case in the higher courts of record. 47 The second factor is the stipulation in s 154 of the FW Act (SA) that the IRCSA is, in the exercise of its jurisdiction, governed by "equity" and "good conscience". Section 154 provides: 154 - General principles affecting exercise of jurisdiction (1) In exercising its jurisdiction, the Court or the Commission - (a) is governed in matters of procedure and substance by equity, good conscience, and the substantial merits of the case, without regard to technicalities, legal forms or the practice of courts; and (b) is not bound by evidentiary rules and practices but may, subject to subsection (2), inform itself as it thinks appropriate. (2) The Court and the Commission must observe the rules of natural justice. 48 The circumstances which may make it appropriate to reopen a previous judgment should not be circumscribed in advance. They may include situations in which the original order was made without jurisdiction, by mistake or in which there is some other vitiating circumstance. In practice, the circumstances in which good reason to reopen may be established are likely to be rare. 49 This understanding of s 174 informed the exercise of power which the Senior Judge was asked to undertake. 50 The Senior Judge referred to these considerations at [36], [45] and [76]-[84] of his reasons.

The appellant's "Secondary Argument" 51 The appellant's Secondary Argument was to the effect that the Senior Judge had erred in failing to recognise that he had an "accrued or acquired right" to have the IRCSA determine his superannuation claim, with the consequence that it had been subject to a distinct "obligation" to allow the reopening and to proceed to determine his claim finally. He contended that, by having filed an application in the IRCSA in 2005 which included a claim with respect to the superannuation contributions, he had acquired the right to have the IRCSA determine that claim. Although the IRCSA had given an interpretation of the Award provision concerning superannuation contributions in its 2006 decision, it had not made an order with respect to that claim. The consequence, the appellant submitted, was that until such time as the claim had been upheld, dismissed or struck out, the requirements to be met for a reopening were less burdensome than is ordinarily the case.

Consideration of the "Secondary Argument" 52 The appellant seemed to be invoking the principle that, once a court is properly seized of the matter, it is obliged (subject to limited and well-recognised exceptions) to exercise its jurisdiction to determine the rights and liabilities in issue: Re Macks; ex parte Saint [2000] HCA 62, (2000) 204 CLR 158 at [53] (Gaudron J); R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33, (1949) 78 CLR 389 at 400-1; and Continental Liqueurs Pty Ltd v GF Heublein and Bro Inc (1960) 103 CLR 422 at 426 (Kitto J). However, this principle applies only when the court in question does have jurisdiction in respect of the matter. The difficulty for the appellant is that this Court found in Kronen Full Court 2008 that the IRCSA lacked jurisdiction on his application to deal with his superannuation claim. That decision stands and is final. It cannot be ignored. It follows therefore that the appellant does not have an accrued right to have the IRCSA hear and determine a claim over which it lacks jurisdiction. 53 In support of the "Secondary Argument" in the IRCSA, the appellant had referred to Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; (2005) 223 CLR 251. In that case, the High Court held (relevantly) that the pleading by a plaintiff of facts sufficient to enliven a claim under the Civil Aviation (Carriers Liability) Act 2009 (Cth) (the Carriers Liability Act) meant that such an action had been commenced within the requisite two year period even though the plaintiff had pleaded those facts with a view to supporting different causes of action. That is to say, the action under the Carriers Liability Act could be said to have been brought within the limitation period because of the pleading of facts to support it, even though the cause of action had not been expressly identified in the pleading. 54 The appellant did not advance, at least expressly, the same submissions on the appeal but, on the issue being drawn to his attention, did not seem to abandon it. The submission seemed to be that his 2005 application had been sufficient to raise a claim under s 178. 55 The appellant's reliance on Agtrack faces two difficulties. First, it is to be remembered that the issue in Agtrack was (relevantly) whether an action for damages under the Carriers Liability Act had been "brought" in the Court which had jurisdiction to hear the claim within the two year limitation period before it became extinguished. That issue was to be determined in the context that the plaintiff had undoubtedly brought a claim for damages, albeit ostensibly directed to claims in contract and negligence. The Carriers Liability Act did not contain any prescription as to the bringing of the action, leaving that to the procedural laws of a court with jurisdiction to hear and determine the claim. In the case of a State Court, these laws were picked up and applied by s 79 of the Judiciary Act 1903 (Cth). In the present case, the appellant had not otherwise brought a claim seeking the imposition of a penalty, this being the primary relief for which s 178 provided and the claim which was necessary to make the action "a proceeding … under [that] section". 56 Moreover, the WR Act attached importance to jurisdiction to make orders with respect to superannuation contributions being in proceedings brought pursuant to s 178 and not otherwise - hence the inclusion of the qualifying words "a proceeding under this section" in subss (6A) and (6B). Those words had work to do. It is not readily apparent how the appellant's 2005 action could be regarded as "a proceeding … under [s 178]" when he did not even claim the relief for which it provided. 57 However, it is not necessary to express a final view about this issue because the second difficulty is more fundamental. As already noted, the Full Court in Kronen Full Court 2008 found expressly that the jurisdiction of the IRCSA invoked by the appellant in 2006 was that granted by s 179(1) of the WR Act. Further, by finding that the IRCSA lacked jurisdiction to deal with the superannuation claim and should have dismissed that part of the appellant's claim, the Full Court found implicitly that the appellant's proceedings could not be regarded as proceedings commenced under s 178. It is not clear whether the appellant raised Agtrack before the Full Court in 2008 but, if the appellant had wished to contend that his 2005 application had been sufficient to invoke a claim under s 178, the place for a challenge to the decision of the Full Court was in the High Court and, as noted, the appellant was unsuccessful in obtaining a grant of special leave. The appellant's attempt to invoke the Agtrack principle now is accordingly precluded to him. The Senior Judge was correct in saying that the IRCSA did not have jurisdiction to review the decision in Kronen Full Court 2008. 58 The appellant sought to bolster his contention that he had an accrued or acquired right to have his superannuation claim heard in the IRCSA by referring to Kronen Full Court 2018 at [62] in which this Court said "by filing his application in the IRCSA, Mr Kronen had acquired a right to have the IRCSA determine the application". However, this reliance was misplaced as the Full Court was not then referring to the appellant's underlying application with respect to superannuation, but to his application for directions seeking the reopening and to the interrelationship between that application and s 16 of the AI Act (SA). 59 The appellant is correct in submitting that the Senior Judge did not address expressly the "Secondary Argument" in that part of his decision under the heading "Consideration". However, the Senior Judge had referred to the "secondary submission" earlier in his reasons, at [43]-[44]. His Honour also addressed elements of the Secondary Argument by noting that, by failing to seek the imposition of a penalty pursuant to s 178 of the WR Act, the appellant had not invoked the jurisdiction of the IRCSA with respect to such a claim, at [93]; that Kronen Full Court 2008 had brought to an end the appellant's 2005 application so far as it related to a claim under s 179 of the WR Act, at [94]; and that the IRCSA did not have jurisdiction to review the decision in Kronen Full Court 2008, at [94]. 60 For these reasons, we consider that the appellant has not made good the "Secondary Argument".

The appellant's "Primary Argument" 61 The appellant's Primary Argument was that the IRCSA should have permitted the reopening in order "to cure injustice". The submissions in support of the Primary Argument comprised an amalgam of matters. These included the contention that, as no final order had been made by any court in relation to his superannuation claim, the reopening did not require any previous judgment or order to be reopened, varied or set aside; that the threshold for permitting reopening in such circumstances was lower than would otherwise be the case; that he would suffer significant injustice if the reopening was not permitted by reason that he would not then be able to pursue his superannuation claim; that in giving the construction of the Award which was adverse to his superannuation claim, the Industrial Magistrate in 2006 had proceeded on a "misapprehension as to the facts or the law"; that insufficient regard had been had to his submission that it was "misconduct" by CMI and its agent which had caused, or significantly contributed to causing, the Magistrate to proceed as he had; that insufficient regard had been had to the implications for the "great many other employees throughout Australia covered by the same Award"; that his own errors in the course of the various proceedings by which he has pursued the superannuation claim have not played any part in the creation of the injustice of which he complains; that the IRCSA should have found that he had pursued his claim to the superannuation contributions "diligently, methodically and without undue delay or interruption"; and that the IRCSA had given undue weight to the public interest, the principles concerning finality of litigation, and the prejudice to CMI. 62 The way in which some of these submissions were presented was suggestive of an invitation to this Court to exercise the discretion with respect to reopening afresh rather than identifying a specific House v The King error in the reasons of the Senior Judge.

Consideration of the "Primary Argument" 63 The appellant's application in 2013 to reopen his 2005 proceedings was, to say the least, unusual. It was made seven years after the IRCSA's decision in those proceedings and four years after the appellant had exhausted avenues of appeal. The application to reopen when filed in 2013 was not accompanied by any application to amend the 2005 proceedings so as to include a claim under s 178. In the absence of an application to amend, the only order which the IRCSA could have made, had it granted leave to reopen, would have been to dismiss the superannuation claim, as Kronen Full Court 2008 indicated it should have. 64 Not only did the appellant seek a very late reopening and amendment, he did so to make, amongst other things, allegations of fraudulent and other improper conduct by CMI said to have occurred more than 13 years earlier. 65 These two circumstances by themselves meant that the appellant had a challenging task in seeking a favourable exercise of the discretionary power to reopen and amend. 66 At the heart of the submissions which the appellant made on appeal with respect to the curing of injustice, were his contentions that the Industrial Magistrate had, in 2006, proceeded on a misapprehension as to the facts or the law in giving his interpretation of the Award in relation to the claimed superannuation entitlements, that those errors resulted from the conduct of CMI and its agent, and that the Senior Judge had overlooked these matters. The appellant also emphasised that the error he imputed to the Magistrate affected not only his own entitlements, but also those of the many other employees covered by the Award. 67 In support of his contention that the Magistrate's interpretation of the Award was in error, the appellant referred to the decision in Re The Vehicle Industry - Repair, Services and Retail - Award 1976 (1979) 38 FLR 367. In that case, Keely J found that the ordinary natural meaning of the term "wages the employee would have received in respect of the ordinary time the employee would have worked" in the Award included both the wages the employee would have received in accordance with the Award plus any over-award payment in respect of ordinary time. As we understood it, the appellant contended that this construction was inconsistent with that given by the Magistrate when interpreting his Award entitlement to superannuation contributions. 68 The Senior Judge did note the appellant's submission that the construction adopted by the Industrial Magistrate was contrary to that of Keely J in the 1979 decision. The appellant is correct in contending that his Honour did not address the merit of that submission. However, the Senior Judge had noted that the Court may reopen its judgments or orders if convinced that, in the earlier consideration of a point, it had proceeded on a misapprehension as to the facts or the law, there was some matter calling for review, or that the interests of justice required that it do so. His Honour referred in this respect to De L v Director-General at 215. This supports the conclusion that the Senior Judge did not overlook this consideration. Our firm impression is that the Senior Judge did not consider it necessary to consider the merit of the argument which the appellant wished to advance as the prejudice to the appellant from being unable to advance it was far outweighed by the other discretionary considerations to which the Senior Judge did refer. 69 In our view, there was no injustice to the appellant in the Senior Judge doing so. In assessing the extent of the injustice, it should be kept in mind that, by reason of the limitation period imposed by s 178(7) of the WR Act, the Magistrate would in any event have been limited to ordering the payment of superannuation contributions only in respect of the period from 11 July 2009 to 3 November 2000. 70 The appellant submitted that CMI had engaged in "misconduct" in the proceedings in the IRCSA in 2006 because its agent had "consciously" made misleading submissions to the Court. However, on our review of the transcript in the proceedings in the IRCSA, the conduct of the agent on which the appellant relied seemed to comprise no more than CMI's agent making a submission to the IRCSA (which was upheld) which the appellant contends was wrong. Even if the agent's submission had been incorrect, that does not, of itself, indicate misconduct by the agent, let alone of CMI. It is commonplace in litigation for counsel to make submissions which may be rejected as erroneous, without there having been any impropriety by counsel in having made the submission. 71 The appellant's allegations of other improper conduct by CMI do have a significance to which we will refer later. 72 The appellant sought to diminish the significance of the time which has now elapsed since the decision of the IRCSA in 2006 which he seeks to have reopened. Unsurprisingly, this was a matter to which the Senior Judge attached particular significance having regard to the prejudice to CMI and to the proper administration of justice which that delay would cause. 73 The appellant emphasised that much of the time which has elapsed was attributable to his unsuccessful attempts to pursue his claim for superannuation contributions by other means. That submission can be accepted in part because it is plain that the appellant was not responsible for some of the procedural and jurisdictional difficulties which have arisen. 74 However, the fact is that it was the appellant who, inappropriately, pursued appeals in the IRCSA and then to the Supreme Court of South Australia in 2006 and 2007 when those Courts lacked jurisdiction; it was the appellant who commenced proceedings in the FMC in 2008 and 2009 against an inappropriate respondent and without standing to do so; it was the appellant who sought to involve the Commissioner of Taxation in 2008 and 2009 and who pursued unsuccessful judicial review proceedings in this Court in 2012 and 2013; and it was the appellant who pursued, unsuccessfully, an appeal in this Court against the decision of the SAEC in 2017 that it did not have jurisdiction to hear and determine his application to reopen the IRCSA proceedings. Moreover, it is the appellant who must bear responsibility for not having commenced his original proceedings in the IRCSA until some four years and eight months had elapsed since the termination of his employment. 75 The appellant contended, more than once, that he had "heeded and acted" on the advice provided to him by the Full Court during the hearing in 2008 and in Kronen Full Court 2008. In particular, the appellant submitted that it was the reference in Kronen Full Court 2008 to the jurisdiction vested in this Court and in the FMC to interpret Federal awards which had prompted him to commence his unsuccessful applications in the FMC in 2008 and 2009. 76 We note, however, that Kronen Full Court 2008 did not contain any encouragement or suggestion to the appellant to adopt that course. Instead, the Full Court had referred to the power of this Court and of the FMC to give an interpretation of an industrial award only as part of its reasons for concluding that the IRCSA lacked such jurisdiction. It is the appellant who should bear responsibility for commencing proceedings in the FMC against the inappropriate respondent and for which he lacked the necessary standing. 77 It is true, as the appellant submitted, that Gray J during the course of the appeal in 2008 had said that, if it was only the Commissioner for Taxation who had the capacity to pursue the claim for superannuation, then it may be that the appellant should make representations to the Commissioner. However, that observation cannot reasonably be understood as an intimation that it was in fact only the Commissioner who had that capacity. Nor can it be understood as an encouragement to the respondent to pursue an application for judicial review under the ADJR Act which had no reasonable prospect of success, and then to seek leave to appeal against that decision. 78 The reasons of McHugh J (with whom Dawson J agreed) in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 concerning the effect of delay on the quality of justice in the context of extending limitation periods are apposite presently. His Honour said, at 552: The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. As the New South Wales Law Reform Commission has pointed out: "The potential defendant is thus able to make the most productive use of his or her resources and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided. To that extent the public interest is also served." Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible. (Citations omitted) 79 As the reasons of McHugh J indicate, delay by itself is usually not the decisive matter. It is the effects which it produces which are material, whether in the form of prejudice to the opposing party or to the administration of justice more generally. 80 Prejudice to CMI if the reopening and amendment were allowed loomed large in the Senior Judge's consideration, and the appellant did not seek directly to challenge his conclusions on that topic. However, he was inclined to be critical of CMI in his submissions. As noted earlier, the grounds upon which he sought the reopening in the IRCSA included an assertion that CMI had sought (apparently during the currency of his employment) to defraud employees of their lawful superannuation entitlements. An allegation of fraud is a serious matter. It was not difficult for the Senior Judge to infer that CMI would be significantly prejudiced in defending such a claim after so many years. 81 Further, the appellant's submissions in the IRCSA and to this Court included allegations that CMI had acted "wilfully", "consciously", or "deliberate[ly]" to mislead the IRCSA in 2006 and he attributed the error of construction to the Award which he claimed to be "misconduct of CMI". Whilst the appellant did not point to any matter providing objective justification for these characterisations of CMI's conduct, the very fact that they are made and sought to be pursued by the appellant, underlines the prejudice which would be caused to CMI in being called upon to defend itself some 20 years later against such serious allegations. 82 In our view, the Senior Judge was correct in regarding the prejudice to CMI as a significant matter pointing against the justice of allowing a reopening. 83 It is appropriate to record that CMI denied entirely any inappropriate conduct on its part. 84 We add that the period which elapsed between the cessation of the appellant's employment and his commencement of the proceedings in the IRCSA is not to be ignored in assessing the prejudice likely to be suffered by CMI in the event that a reopening was allowed - see Brisbane South Regional Health Authority v Taylor at 544-5. 85 The appellant questioned "the need for the court to consider the protection of the interests of [CMI]". He submitted that it was for CMI to protect itself, and that it had been open to it to have applied to have the superannuation claim stuck out if it considered that the appellant had abandoned the claim or that it had become stale. As CMI had failed to take "even the most basic steps to do so", the Court should have "minimal regard for those interests". 86 With due respect to the appellant, this submission is misconceived. It was for him as the claimant to bring his claims in the appropriate court, in the appropriate way and time, and against the appropriate respondent. CMI had the benefit of the finding in Kronen Full Court 2008 that the IRCSA did not have jurisdiction to hear and determine the only claim concerning superannuation which the appellant had brought to it and that the IRCSA should have dismissed the superannuation claim. There was no need for it to have taken any other action. 87 The appellant was also inclined to attribute responsibility for his difficulties to the evident confusion of the Industrial Magistrate as to his jurisdiction with respect to the superannuation claim. The submission was to the effect that, had the Magistrate understood that he did not derive any jurisdiction from s 14 of the FW Act (SA) with respect to the appellant's claims but instead from ss 178 or 179, he is likely to have drawn the appellant's attention to s 178 which would have alerted him to the desirability of then amending his claim or, alternatively, commencing fresh proceedings. That may be so, but the appellant had not sought to correct the misunderstanding under which the Industrial Magistrate was then proceeding. In particular, he did not draw the Magistrate's attention to s 178 of the WR Act. As the Senior Judge noted, even after Kronen Full Court 2018 had drawn the appellant's attention to the significance of the absence of a claim under s 178, he still did not take any steps to pursing such a claim until 2013, and more realistically, until 2016. 88 The appellant is correct in submitting that the Senior Judge had thought that he had brought two claims with respect to his superannuation in the FMC before pursuing the appeal culminating in Kronen Full Court 2008 when he had in fact made those claims after that decision. However, the appellant did not point to any matter indicating that this misunderstanding by the Senior Judge had had any material effect. In our view, that is understandable as it is not immediately obvious that the Senior Judge could have regarded his understanding that the proceedings had been commenced in the FMC before Kronen Full Court 2018 as being material to the exercise of the discretion with respect to the reopening. To the contrary, it is the appellant's inappropriate pursuit of these proceedings after Kronen Full Court 2008 which is material, as it contributed to the significant lapse of time which has occurred. 89 In our view, the appellant's attempt to invoke the potential ramifications for other persons employed under the Award does not avail him. That is so because it is improbable that others would regard the decision of the Magistrate as authoritative, given that it was determined in Kronen Full Court 2008 to have been made without jurisdiction, and given that it was made without reference to apparent relevant authority. 90 The appellant relied on the fact that the IRCSA has not made a formal order with respect to his superannuation claim. That meant, he submitted, that it should have been easier for him to obtain an order for reopening than would otherwise have been the case. We do not accept that submission. It is natural that the Senior Judge had regard to the practical realities of the situation, including the appellant's knowledge since 2006 that his claim for superannuation contributions had been unsuccessful and his knowledge since Kronen Full Court 2008 that the IRCSA did not even have jurisdiction to hear and determine the claim he had brought. The appellant's characterisation of his claim as "dormant" in the intervening years is not appropriate, as he had not commenced a claim within the jurisdiction of the IRCSA which could lie "dormant". Moreover, the Senior Judge noted that no final order had been made on the appellant's superannuation contribution claims, a circumstance which his Honour identified as the most persuasive argument in the appellant's favour.

Conclusion 91 For the reasons stated above, we do not consider that any error in the Senior Judge's exercise of discretion has been shown. In any event, had we been exercising the discretion afresh, we would have exercised it in the same way. 92 We add that it has not been necessary for this Court to consider the possibility that the appellant's superannuation claim is now irretrievably statute barred in any event. Counsel for CMI said that it had made a conscious decision not to advance such a submission. 93 We make the following orders: (a) the appeal be dismissed; and (b) there be no order as to costs. I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices White, Charlesworth and O'Callaghan.

Workplace Relations Act 1996(Cth)ss 178, ss 178, 179, 720, 848, 850, 853

Civil Aviation (Carriers Liability) Act 2009(Cth)

Conciliation and Arbitration Act 1904(Cth)

Industrial Relations Act 1988(Cth)

Industrial Relations Legislation Amendment (No 2) Act 1990(Cth)s 10

Workplace Relations Amendment (Work Choices) Act 2005(Cth)s 3(1)

Acts Interpretation Act 1915(SA)s 16

Statutes Amendment (South Australia Employment Tribunal) Act 2016(SA)s 69(2)

(Statutes Amendment (South Australia Employment Tribunal) Act 2016(SA)s 69(2))

Fair Work Act 1994(SA)ss 14, 154, 174

mercial Motor Industries Pty Ltd (t/as CMI Toyota) [2020] SAIRC 1 Kronen v Federal Commissioner of Taxation [2012] FCA 1463; (2012) 213 FCR 495 Kronen v Federal Commissioner of Taxation [2013] FCA 416; (2013) 95 ATR 77 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389 Re Macks; ex parte Saint [2000] HCA 62; (2000) 204 CLR 158 Re The Vehicle Industry - Repair, Services and Retail - Award 1976 (1979) 38 FLR 367 Vidov & Tsemelis v Michelle Fisheries Pty Ltd [2003] SAIRC 15

Sections 178 and 179 of the Workplace Relations Act 1996 (Cth) 6 Sections 178 and 179 of the former Workplace Relations Act 1996 (Cth) (the WR Act) provided alternate means by which an employee could sue to recover amounts due under an award or certified agreement. It is the different terms in which each was expressed which has given rise to the protracted litigation concerning the exercise of jurisdiction by the IRCSA with respect to the appellant's superannuation claims. 7 On 11 July 2005, when the appellant commenced his proceedings in the IRCSA, s 178 of the WR Act provided (relevantly): 178 Imposition and recovery of penalties (1) Where an organisation or person bound by an award … breaches a term of the award … a penalty may be imposed … by a court of competent jurisdiction. … (4) The maximum penalty that may be imposed under subsection (1) for a breach of a term of an award, order or agreement is: … (b) where the penalty is not imposed by the Court - 300 penalty units for a body corporate or 60 penalty units in other cases. … (5) A penalty for a breach of a term of an award or order may be sued for and recovered by: … (ca) a person: (i) whose employment is, or at the time of the breach was, subject to the award; and (ii) who is affected by the breach; … … (6) Where, in a proceeding against an employer under this section, it appears to the court concerned that an employee of the employer has not been paid an amount that the employer was required to pay under an award … the court may order the employer to pay to the employee the amount of the underpayment. (6A) Where, in a proceeding against an employer under this section, it appears to the court concerned that the employer has not paid an amount to a superannuation fund that the employer was required, under an award … the court may order the employer to make a payment to or in respect of that person for the purpose of restoring the person, as far as practicable, to the position that the person would have been in had the employer not failed to pay the amount to the superannuation fund. (6B) Without limiting the generality of subsection (6A), the court concerned may order that the employer pay to the superannuation fund referred to in subsection (6A), or another superannuation fund, an amount equal to the amount (in this subsection called the unpaid amount) that the employer failed to pay together with such additional amount as, in the opinion of the court, represents the return that would have accrued in respect of the unpaid amount had it been duly paid by the employer. (7) An order shall not be made under subsection (6) or (6A) in relation to so much of an underpayment as relates to any period more than 6 years before the commencement of the proceeding. (8) A proceeding under this section in relation to a breach of a term of an award, order or agreement shall be commenced not later than 6 years after the commission of the breach. … (Emphasis added) 8 Subsections (6A) and (6B) were inserted into the WR Act (then known as the Industrial Relations Act 1988 (Cth)) by s 10 in the Industrial Relations Legislation Amendment (No 2) Act 1990 (Cth). 9 Section 179(1) of the WR Act provided: Where an employer is required by an award, order or certified agreement to pay an amount to an employee, the employee may, not later than 6 years after the employer was required to make the payment to the employee under the award, order or agreement, sue for the amount of the payment in the Court or in any court of competent jurisdiction. 10 As is apparent, after the insertion of subss (6A) and (6B) into s 178, a "competent court" (of which the IRCSA was one) could, in proceedings for the imposition of a penalty, make orders with respect to the payment of superannuation contributions to which an employee was entitled. In contrast, the jurisdiction vested by s 179(1) was confined to amounts to be paid "to an employee" and did not extend to amounts to be paid on behalf of an employee, such as superannuation contributions. More particularly, s 179 did not contain any counterparts to s 178(6A) and (6B). The consequence was that, in proceedings under s 179 of the WR Act, a court such as the IRCSA was not empowered to make an order with respect to the payment of superannuation contributions, but could do so in proceedings brought under s 178. 11 Sections 178 and 179 of the WR Act were repealed in 2005 and replaced (relevantly) by s 720 of the WR Act - see s 3(1) and Item 185 in Sch 1 to the Workplace Relations Amendment (Work Choices) Act 2005 (Cth). Although that amendment took effect on 27 March 2006, it had no effect on the appellant's claims: Kronen v Commercial Motor Industries Pty Ltd (CMI Toyota) [2008] FCAFC 171; (2008) 171 FCR 521 (Kronen Full Court 2008) at [4]-[5]. 12 The appellant's difficulties arise from the fact that he did not seek the imposition of a penalty on CMI in the proceedings he commenced in 2005 in the IRCSA.

The 2006 decision of the IRCSA 14 As already noted, the appellant's employment with CMI ceased on 3 November 2000. On 11 July 2005, he lodged an application in the IRCSA claiming two forms of payment said to be due to him under the Vehicle Industry - Repair, Services and Retail Award 1983 (the Award). The first was an underpayment of wages (said to be approximately $59,000) resulting from the non-payment of overtime. The second was underpayment of superannuation contributions (said to be approximately $6,000). Although the appellant did not refer to either s 178 or s 179 in his application, he did not make any claim for the imposition of a pecuniary penalty, being the primary relief for which s 178 provides. 15 By its amended filed answer to the appellant's claim, CMI contended, amongst other things, that the SAIRC did not have jurisdiction to hear and determine the appellant's claim for superannuation contributions and referred to previous decisions of the IRCSA in support. 16 The appellant's application was heard by an Industrial Magistrate who delivered judgment on 12 May 2006: Kronen v Commercial Motor Industries Pty Ltd (t/as CMI Toyota) [2006] SAIRC 31. The Magistrate dealt with the challenge to the IRCSA's jurisdiction with respect to the claim for superannuation contributions as a preliminary point but summarised his conclusion in the judgment: [7] Mr Law, as agent for CMI Toyota, contended that the Court had no jurisdiction to deal with that part of the applicant's claim relating to superannuation payments. [8] The applicant submitted that although the Court may have no jurisdiction to order the payment of superannuation contributions, it was able to proceed to determine what was the appropriate gross sum to be used when calculating superannuation contributions. [9] I determined that the Court has jurisdiction to interpret the Federal Award that is binding upon the parties (see below). Accordingly I indicated that I would proceed to determine what was the appropriate gross sum to be used for calculating superannuation contributions. 17 The Industrial Magistrate then rejected the appellant's claim for underpayment of wages and gave an interpretation of the Award, the effect of which was that the Award had not obliged CMI to make the superannuation contributions claimed by the appellant (as commission payments were not included in the amounts on which the superannuation contributions were to be calculated). 18 Although it is evident that there was some confusion in the IRCSA as to the jurisdiction it was exercising with respect to the superannuation claim, the transcript of the hearing in the IRCSA indicates an understanding by the Magistrate that, with respect to the claim for unpaid overtime, it was s 179 of the WR Act which was the source of his jurisdiction. The transcript also indicates that the appellant confirmed to the Magistrate that, on the "superannuation issue", what he sought was an "interpretation of the Award". He explained to the Industrial Magistrate: The Taxation Office has essentially asked if there is no jurisdiction of the court - sorry, to award any unpaid superannuation to me the court - or that I should ask the court at least to rule on the interpretation of the Award or make findings on the interpretation of the Award, which I ask. 19 The appellant did not refer the Magistrate to s 178, let alone apply to amend his proceedings so as to include a claim for the imposition of a pecuniary penalty. 20 In concluding that the IRCSA lacked jurisdiction to make an order with respect to the appellant's claimed superannuation contributions entitlements, the Industrial Magistrate applied a line of authority in that Court in which it had been held that the scheme for payment of occupational superannuation was governed by the Superannuation Guarantee Charge Act 1992 (Cth) and the Superannuation Guarantee (Administration) Act 1992 (Cth), and that that scheme prevailed over the provisions in the FW Act (SA) vesting jurisdiction in the IRCSA: see Hanafin v Distinctive Data Services (1993) 60 SAIR 408 at 421-3; Vidov & Tsemelis v Michelle Fisheries Pty Ltd [2003] SAIRC 15; Egan v Department of Human Services [2003] SAIRC 50; Drewniak v Air Bags Australia Pty Ltd [2004] SAIRC 37; and Croft v Lukins [2004] SAIRC 58. The Magistrate appears to have overlooked, however, that in this case the appellant was seeking to enforce an entitlement to superannuation contributions said to arise from an industrial award made under the Conciliation and Arbitration Act 1904 (Cth) (as varied from time to time under that Act and its successors, including the WR Act). This meant that the FW Act (SA) was not the source of the IRCSA's jurisdiction, with the consequence that the issue of inconsistency between Commonwealth and State legislation did not arise. There may possibly have been a question of inconsistency between the superannuation legislation and the WR Act, but given the insertion of subss (6A)and (6B) into s 178 of the latter, it seems inevitable that any such question would have been resolved in favour of the IRCSA having jurisdiction under s 178 (but not s 179). 21 Relying on a provision in the FW Act (SA), the Industrial Magistrate considered that the IRCSA did have jurisdiction to give an interpretation of the Award concerning the appellant's superannuation entitlements, and did so. As noted, that interpretation was adverse to the appellant, but the Magistrate did not make any order giving effect to that interpretation.

The appeal to this Court in 2008 22 By reason of ss 850(2) and 853(1) of the WR Act, any appeal by the appellant against the decision of the Industrial Magistrate lay only to this Court. Despite that, the appellant commenced an appeal in the IRCSA which was determined by a single judge of that Court (Kronen v Commercial Motor Industries Pty Ltd (t/as CMI Toyota) [2006] SAIRC 85) and then, it seems, filed a notice of appeal in the Supreme Court of South Australia. 23 Eventually, on 28 March 2008, the appellant lodged in this Court a notice of appeal against the decision of the Industrial Magistrate and, on 23 April 2008, was granted an extension of time in which to do so. The appellant's appeal was heard on 12 August 2008 and judgment delivered on 8 October 2008: Kronen v Commercial Motor Industries Pty Ltd (CMI Toyota) [2008] FCAFC 171; (2008) 171 FCR 521 (Kronen Full Court 2008). 24 The Full Court dismissed the appeal, giving the following reasons which are relevant for present purposes: (a) as the appellant had not made any claim for the imposition of penalty for a contravention of any term of the Award, the jurisdiction which the Industrial Magistrate had been exercising was that conferred by s 179(1) of the WR Act, at [3]. Section 179 gave the IRCSA jurisdiction to deal only with a claim for a payment which an employer was required to pay to an employee. That jurisdiction did not extend to obligations of employers to make payments on behalf of employees to superannuation funds, because such payments were not amounts which an employer was required to pay "to an employee", at [12]; (b) while the IRCSA may be required to interpret Federal awards to the extent that such an interpretation is required for the exercise of jurisdiction otherwise conferred on it, the appellant's claim was not such a case, as the IRCSA had no jurisdiction on the claim filed by the appellant to determine the claim for underpayment of superannuation contributions, at [12]-[13]. Accordingly, the Industrial Magistrate had been in error in concluding that the IRCSA had jurisdiction to interpret the Award; (c) because the IRCSA lacked jurisdiction to deal with the superannuation claim, the proper order for the Industrial Magistrate to have made was to dismiss that part of the appellant's claim, at [14] and [34]; (d) as the Industrial Magistrate had not made an order in relation to the claim for superannuation, it was possible that the order he had made did not dispose finally of the proceeding before him, but as no point had been taken to the effect that the Industrial Magistrate's order was interlocutory in nature and therefore that the appeal required leave, the Court proceeded on the basis that the appeal was competent, at [15]; and (e) the application of the Award (properly construed) to the work undertaken by the appellant meant that he was not entitled to payment in respect of the overtime hours he had worked, at [33]-[34].

Applications for special leave to appeal 25 The appellant sought special leave to appeal to the High Court of Australia against the orders in Kronen Full Court 2018. In fact, he made two applications but both were unsuccessful: Kronen v Commercial Motor Industries Pty Ltd (CMI Toyota) [2009] HCASL 25 and Kronen v Commercial Motor Industries Pty Ltd (CMI Toyota) [2009] HCASL 168. The first refusal occurred on 3 March 2009 and the second on 5 August 2009. The appellant informed this Court that neither of his applications for special leave to appeal to the High Court had concerned his superannuation claim.

Applications to the Federal Magistrates Court for award interpretation 26 In the meantime, the appellant had applied to the Federal Magistrates Court (the FMC) seeking an interpretation of the Award under s 848 of the WR Act. However, he named the Commissioner of Taxation as the respondent to his application. On 11 March 2009, the FMC granted summary judgment dismissing that application on the basis that the Commissioner was not an appropriate party to the proceedings: Kronen v Commissioner of Taxation [2009] FMCA 1019 at [10]-[11] and [13]. 27 The appellant then commenced a second set of proceedings in the FMC seeking an interpretation of the provision in the Award concerning superannuation. This application was dismissed on the basis that, having regard to the terms of s 848 of the WR Act, the applicant did not have standing to bring the application: Kronen v Commercial Motor Industries Pty Ltd [2009] FMCA 808 at [10].

Attempts to involve the Commissioner of Taxation 28 The appellant then sought to have the Commissioner of Taxation take steps on his behalf to pursue the payment of the superannuation contributions. On those steps being unsuccessful, the appellant brought an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) against the Commissioner. The Commissioner obtained an order for the summary dismissal of that action on the basis that the appellant had no reasonable prospect of successfully prosecuting the proceeding: Kronen v Federal Commissioner of Taxation [2012] FCA 1463; (2012) 213 FCR 495. An application for leave to appeal against that decision was refused on 10 May 2013: Kronen v Federal Commissioner of Taxation [2013] FCA 416; (2013) 95 ATR 77.

At a glance

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Legislation Cited (14)

Cases Cited (36)